2013-45 (Emergency Staff Opinion issued November 1, 2013)
Appearance of Impropriety; Disclosure/Disqualification; Bias & Prejudice
Rules 1.2 & 2.11
Issue: A juvenile prosecutor
consulted with an attorney about an adult criminal
matter involving a Judicial Official’s family member
a couple of years ago. The lawyer that was
consulted, at the time, was a partner with the
Judicial Official’s spouse. (They are no
longer partners.) A file was opened by the law
firm and a nominal fee was charged. The file
was closed approximately 1 ½ years ago by the law
firm and the file remained with the firm.
According to the former partner, there was no
ongoing duty of representation; however, the
prosecutor claims that the firm was retained with
respect to potential future matters related to the
underlying consultation. The Judicial
Official’s spouse was never involved in providing
advice concerning the matter.
The prosecutor believes that the Judicial Official
has a conflict and has instructed his staff not to
go to court if the Judicial Official is presiding on
an upcoming court date. The Judicial Official
does not hold a personal bias or prejudice
concerning the prosecutor.
The Judicial Official has inquired whether he or she
may preside over unrelated cases and whether
the Judicial Official has a duty to disclose the
Judicial Official’s spouse’s firm’s past
relationship with the attorney.

Applicable Rules:
Rule 1.2 states that “a judge shall act at all
times in a manner that promotes public confidence in
the independence, integrity, and impartiality of the
judiciary and shall avoid impropriety and the
appearance of impropriety. The test for
appearance of impropriety is whether the conduct
would create in reasonable minds a perception that
the judge violated this Code or engaged in other
conduct that reflects adversely on the judge’s
honesty, impartiality, temperament, or fitness to
serve as a judge.”
Rule 2.11 states, in relevant part, as follows:

(a) A judge
shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might
reasonably be questioned including, but not limited
to, the following circumstances:

(1) The
judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of
facts that are in dispute in the proceeding.

Emergency
Staff Opinion: After consulting with
several members of the Committee, staff counsel
advised the Judicial Official that while the
Committee did not believe that the Judicial
Official’s impartiality might reasonably be
questioned or that there was an appearance of
impropriety if the Judicial Official presided over
the unrelated juvenile cases involving the
prosecutor’s office, the Judicial Official should
consult with the Administrative Judge or other
individual to see if the matter could be avoided by
having another judge handle the docket and to also
pursue an administrative remedy by having either the
State’s Attorney or the Chief State’s Attorney
discuss with the prosecutor the impropriety of
instructing staff not to report to court if a
particular judge is on the bench. One member of the
Committee believed that (a) the Judicial Official
may hear cases where other prosecutors are appearing
before the Judicial Official and that (b) the
Judicial Official should disclose the relationship
with the juvenile prosecutor to the parties and
their counsel for a reasonable period of time, which
is not less than two years from the date of the file
was closed by the law firm.